The Use of Depositions in Cayman

In the course of international litigation a party may seek to depose a future witness of fact using powers available to that litigant under the laws of another jurisdiction or under powers of the domestic court. What approach does a court take to such steps?

Four recent judgments in the Cayman Islands have considered these issues from the perspective of Cayman law. The judgments confirmed that in appropriate circumstances domestic and foreign depositions will be permitted to assist trial preparation, but confirmed that depositions will only be permitted in exceptional circumstances.

In the United States, Title 28 of U.S. Code s.1782 allows a litigant in non-U.S. proceedings to apply for permission to obtain evidence for use in such proceedings. The litigant must establish that it is an "interested person" in a foreign proceeding, including documentary discovery and the taking of depositions.

Anti-suit Proceedings

An established body of case law has consistently indicated that anti-suit proceedings would be readily granted to restrain s.1782 depositions of intended witnesses largely on the basis that such depositions would constitute unwarranted double cross-examination, including decisions in England (Omega Group Holdings v. Kozeny [2002] C.L.C. 132), Australia (Allstate Life Insurance v. ANZ Banking Group [1996] FCA 1270) and Jersey (United Capital Corporation v. Bender [2006] JLR 269 (CA)).

However in Phoenix Meridian Equity Limited v. Lyxor Asset Management S.A ("Phoenix") (CICA 4 of 2009, 24 September 2009), the Cayman Islands Court of Appeal confirmed the Grand Court's refusal of an anti-suit sought by the Defendant to restrain s.1782 depositions of future witnesses.

The Plaintiff sought s.1782 depositions in New York of two officers of a U.S. company affiliated to the Defendant. It was the Plaintiff's case that there was a significant free-standing litigation benefit in the proposed oral examination.

Restrain the Depositions

The Defendant applied to restrain the depositions on the basis that those officers had provided witness statements in the Cayman action and would be giving oral evidence at the trial of the action. The Defendant argued that the depositions would subject the deponees to unwarranted double cross-examination, that the Cayman trial would suffer from unwarranted duplication and distraction, and that the topics covered by the s.1782 notice were too broad and intrusive.

At first instance, the Grand Court [2009] CILR 342...